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Sexual Harassment

Nonprofits are not exempt from sexual harassment claims like
those recently in the news for business firms and public
agencies. For example, a legal secretary in California
received a multimillion dollar verdict against a law firm. A
trial in the District of Columbia revealed grotesque and
pervasive harassment in the D.C. Department of
Corrections.

Hostile Environment

The most common type of sexual harassment involves the
concept of a "hostile work environment." This concept
extends beyond an abuse of official authority. The harasser
may draw his or her power to intimidate from the size and
characteristics of the staff. The facts and circumstances of
the specific incident determine whether the individual was
subjected to a "hostile" environment. For example:

Explicit pornographic graffiti taken from a popular
song, or posters or pictures of barely clad women, may be
found to be unlawful where one woman works in a large
department of men. On the other hand, the graffiti or
posters may be construed as free expression by a younger,
more gender-balanced workforce.

It may be impermissible for a supervisor to give
frequent hugs to his female coworkers because the hugs
last a little too long, are too tight, and because they
are not prompted by jubilance or excitement. But hugs
given to everyone to bolster self-esteem or to offer
congratulations (though it may create management and
other problems) will probably not constitute sexual
harassment.

While a compliment, by itself, is not unlawful, it
may become harassment if it is designed to hide otherwise
improper conduct. When it is known that someone is
dieting, "congratulations, you look great" can be
encouraging and appropriate. Whispering to the person
that he or she looks "sexy" or "hot" while reading over
his or her shoulder is not likely to be construed as a
mere "compliment" — especially when it is accompanied by
other harassing behavior.

A supervisor's greeting of "cutie on duty" or
anatomical remarks to subordinates could easily go beyond
the boundaries of acceptable flirtation.

A nonprofit can be held liable for a hostile work
environment if it knew, or reasonably should have known, of
the conditions or activities and failed to take corrective
action. For instance, a young clerk complains that she is
uncomfortable with her supervisor's off-color jokes. The
executive director ignores the complaint because "that's
just the way Joe is." Another clerk sues the next year,
alleging that Joe repeatedly showed her pornographic
pictures and followed her home.

The jury will consider whether it was reasonable and
appropriate to ignore the first complaint without an
investigation. With the benefit of hindsight, the jury may
find that, had the executive director investigated the
initial complaint, the off-color jokes were just the tip of
the iceberg. The jury may impose liability because the
organization reasonably should have known of the harassment
and taken corrective action.

Protecting Your Organization

Policies and procedures can shield your organization from
liability. They can establish a forum for open communication
at an early stage so that a misunderstanding or
insensitivity can be corrected before it explodes into a
legal complaint. Not only may policies avoid costly
litigation, they may prevent escalation to more serious
assaults. In one case, after a supervisor disregarded a
serious sexual harassment complaint, the alleged harasser
attacked a coworker after an office party and was later
convicted of attempted rape.

The policies, however, must be effective. If a victim does
not complain, or delays in complaining, the court may
scrutinize the victim's reasons in order to determine
whether the organization permitted or condoned the behavior.
The suggestions offered here can help you develop
appropriate policies and procedures. The box below lists
critical items for inclusion in the rules you develop.
Details are up to you.

Start at the Top

The board of directors plays an
important role in eliminating sexual harassment. It can
create a healthy workplace by emphatically stating a
commitment to creating and maintaining a harassment-free
workplace — regardless of the rank or position of the alleged
harasser. The board can demonstrate its commitment by
supervising the implementation of the organization's
policies and procedures, rather than merely asking the
executive director to write something down to "please the
lawyers." A "zero tolerance" policy will set the tone,
discourage inappropriate behavior, and encourage open
communication.

Policies and Procedures

Policies should prohibit
both harassment and malicious accusations of misconduct.
Violation of the policies should result in appropriate
disciplinary action. The policies should be backed by a
procedure for investigating allegations that protects the
privacy of all parties.

Commit the Policies to Writing

Written policies are
easily distributed in a variety of ways (e.g., in the staff
handbook or on the lunchroom bulletin board). Supervisors
can be required to sign an agreement stating that they have
read the written policies and will adhere to them. Written
policies can be referred to as needed and used to document
your organization's position should an allegation be
made.

Spread the Word

Policies and procedures that go no
farther than the written page are of limited value. Cover
your organization's policies at staff orientations and
provide ongoing communication, through written memos or
training sessions, to make the policies widely known.

Supervise for Compliance

Require notification of the
executive director, or other top manager, of any and all
complaints and ask the board of directors to hold that
individual accountable for the resulting investigation and
course of action.

Make Changes as Necessary

Solicit staff feedback,
through interviews or surveys, in order to assess the
adequacy and effectiveness of your organization's policies
and procedures. Review your policies and procedures
periodically to ensure that your organization is still in
compliance with applicable laws.

Although most laws address only "employees," there is no
reason to so limit your policies. Any harassment, whether
directed at paid staff or volunteers, minimizes
productivity, scares away volunteer support, garners bad
publicity, and erodes community (and donor) good-will.
Volunteers may still be able to sue (e.g., for negligent
infliction of emotional distress), and, if an employee later
sues for similar unwelcome conduct, a jury may perceive the
volunteer's complaint as notice of a problem. While drafting
your organizational policies and procedures, you can include
the young high-schooler who volunteers every Saturday
morning — even though the law may not specifically require
it.

You can protect your organization from sexual harassment
claims by enhancing communication, taking each claim
seriously, investigating each allegation thoroughly and
fairly, and taking appropriate disciplinary action. Specific
policies and procedures may prevent inappropriate behavior
in the first place, and they can guide staff response to
allegations, ensure fair and equal treatment, and document
the reasonableness of your action if you still end up in
court.